When the first doses of COVID-19 vaccinations became available, only adults were eligible to receive them. Over the last few months, vaccines have been produced for younger people, with people 12 years of age or older now eligible to receive a vaccine. Of course, as with many things involving children, there are bound to be situations where parents don’t agree on what the children should do or what is in their best interests. In situations where parents are divorced or separated, this type of disagreement can potentially lead to an impasse requiring the courts to make a determination as to whether the children will be (or can choose to be) vaccinated. This is the scenario presented to the courts in a recent decision issued by the Ontario Superior Court of Justice.
Triples are eligible to be vaccinated
The parties involved in the matter are parents to three children, triplets who were 14 years old at the time of the trial. Two of the children (referred to as “P” and “J”) live with the father, while the third (referred to as “E”) lives with the mother. E attends school in person, while P and J attend a different school, but only virtually.
The mother originally brought the motion because she said the father had been refusing to send P and J to school in person. She asked the court to order him to do so. The father’s position was that both P and J have a desire to attend school but want to receive the vaccine first. The father, who wants all three children (and not just the two primarily in his care) to be vaccinated, told the court the mother would not consent to their vaccination and refused to provide him with their health cards or other identification that would allow them to receive a vaccination. He brought a cross-motion for an order that the mother provides him with their health cards, and that all three children be entitled to receive a vaccination if they choose to do so.
The main consideration needs to be the best interests of the children
All parties agreed that the determination of the issue had to be made in accordance with the best interests of the children.
A decision issued by the courts earlier this year stated that where available, in-person classes are presumed to be in the best interests of the child. In that decision, the court wrote,
“There is increasing evidence that there are long-term educational and social costs associated with virtual schooling for elementary and secondary school students. This has led courts to conclude that, absent compelling evidence otherwise, it is in the best interest of a child to attend in-person schooling where such schooling has been authorized by the government and relevant educational decision-makers. While potential exposure to Covid 19 is obviously a factor to be taken into account in any such assessment, the court is not in a position, especially without expert evidence, to second-guess the government’s decision-making. The court should proceed on the basis that the government’s plan for reopening of schools in the context of Covid 19 is reasonable in the circumstances for most people and that it will be modified as circumstances require.”
The court explained that in all decisions issued on in-person learning, the courts have ruled that government and public health authorities are in a better position than the courts to consider the health risks of going to school. This creates an onus on the parent requesting virtual schooling to establish that their position is in the best interest of the child. The mother asked the court to side with her opinion that this approach only applies to in-person schooling, and not vaccinations, meaning that she should not have the onus to demonstrate that it is in the best interests of the children to not be vaccinated. Her argument was that since vaccinations are not yet mandatory for children attending school, the government must still be uncertain about their safety or efficacy.
The court explained this position is based on a “fundamental misunderstanding” of the government’s position on vaccines as well as the legal test to be applied in cases such as this. Nevertheless, the court stated that the government has been trying to promote vaccine use, and the safety and efficacy of vaccines have been endorsed across Canada at all levels of government and by all health agencies.
Extending the legal test to vaccinations
After establishing that in-person schooling is presumed to be in the best interest of the children, the court applied the same analysis to the issue of whether children should be vaccinated. Citing statements from both the Ontario Ministry of Health and Toronto Public Health, the court found that messaging has been clear that health authorities and the government recommend vaccines. The court’s decision cited a number of decisions addressing vaccinations from Ontario courts over the last six years, with some focusing on COVID-19-related vaccines and others dealing with vaccines children have traditionally received.
The court wrote that the mother presented no evidence to contradict the general presumption that vaccines should be given to eligible children. And so, with the evidence it has been presented with, the court determined it is in the best interest of the parties’ children to be vaccinated.
Does the mother need to consent to the children’s vaccinations?
The last issue the court addressed in its decision was whether the mother’s consent was necessary for the children to be vaccinated. The court stated that the Health Care Consent Act does not provide any minimum age a child must reach in order to make medical treatment decisions. In Ontario, COVID-19 vaccinations do not require children 12 and older to have parental permission. Instead, they can provide their own independent consent so long as the health practitioner providing the vaccine believes the child has the capacity to do so.
Based on its findings, the court ruled that the children shall be entitled to receive a COVID-19 vaccination. Additionally, the children were ordered to return to in-person schooling if they have been vaccinated, and the mother was ordered to share the children’s health cards with the father.
Contact Johnson Miller Family Lawyers if you have questions about decision making the responsibility for your children
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